One of the enduring issues in volunteer management (at least in the UK) is the avoidance of volunteers working under a contract of employment. In fear of this, many organisations follow restrictive practices, increased bureaucracy, reduced scope for providing attractive benefits to potential volunteers, and allow wrong-headed thinking on the issue to predominate. In my view, it is time for this to stop.

Someone signing a contract

Most conferences on volunteer management will feature a lawyer or other legal expert speaking on the issue. Whilst there are some good ones out there, most use the platform they are given to scare volunteer managers into submission. Whether ensuring nobody gets any possible benefit from giving time, or pontificating on what volunteers can and can’t do, Volunteer Managers are encouraged to put legal considerations before all else, rather than take a more considered and common sense approach, a situation not helped when boards and senior managers listen more to legal advisers than their own volunteer management experts.

A bit of background

The issue of whether a volunteer has a contract or not gained attention in the 1990s with a small number of high profile cases where volunteers successfully claimed they actually worked under a contract of employment. This entitled them to the same rights as any employee, enabling them to bring discrimination cases against the volunteer involving organisation.

Understanding this context is important because the creation of a contract of employment with volunteers is actually a risk issue. To my knowledge, in those 1990s cases, the volunteers who claimed employment rights were actually discriminated against by the organisations they volunteered for. Having no means of addressing this via their volunteer status, the individuals concerned had to claim under employment law as the legislation doesn’t cover volunteers. Yet if the organisations had treated these volunteers properly in the first place the contractual status of the volunteers would never have been an issue.

It’s all about risk

Rather than fixating on whether there is a possibility our volunteers might be entitled to contractual status as an employee, perhaps we should be focusing first on managing the risk that a volunteer feels so aggrieved with us that they want to claim employee status in the first place? In short, perhaps we need to practice risk management not risk avoidance!

Risk management involves four simple steps:

What is the likelihood that this risk will occur?

How severe would it be if that risk did occur?

What could we do to minimise the risk occurring?

What is the retained risk we are left with?

Risk avoidance takes the more nuclear option of not doing something just because a bad thing may happen (by the way, not all risk is bad). It is as naive as it is misguided – risk is an inherent part of life. If we wanted to avoid all risk we’d just shut up shop and stay in bed all day.

Someone lying in bed

How then would risk management look when it comes to the issue of volunteers and employment contracts? Let’s consider those four steps again:

What is the likelihood that this risk will occur?
Twenty-three million people volunteer every year. There have been perhaps half a dozen cases of volunteers successfully claiming employment rights in the last thirty years. The implication therefore is that the risk is very low. So low it isn’t really worth considering.However, if your organisation; fails to invest properly in volunteer management; allows volunteers to be treated poorly by paid staff and other volunteers (including trustees); doesn’t have sensible policies in place around volunteer engagement; actively discriminates against volunteers etc.; then your risk is higher. But a volunteer still has to feel so aggrieved they want to seek legal recourse rather than just walk away.Either way you look at it the risk is still pretty low. Sadly, few organisations seem to look at this step in the risk management process, jumping first to the next step…

How severe would it be if that risk did occur?
The worst case scenario is that a volunteer takes you to an employment tribunal claiming employment rights, wins, then returns to tribunal with a discrimination case, and wins again. Aside from the resulting fines and sanctions possible under employment law, there is the potential for reputational risk and associated impacts on fundraising, future volunteer recruitment and negative media coverage. This is why many people rightly think the risk is pretty severe.Unfortunately, this is where the risk management process not only starts but also stops for many people. The risk is severe so they do everything they can to avoid it. But that fails to acknowledge the next step…

What could we do to minimise the risk occurring?
Considering the statistics alone, there is very little we can do to reduce the risk. Assuming six successful claims for employment rights happened in one year (and 23 million people volunteered that year) the percentage chance of you facing such a successful claim would be 0.00000026%! The only way to reduce that risk further would be to stop volunteer involvement altogether, a drastic solution to a minuscule problem.Instead, let’s focus on the other issues we raised in step one.Your organisation can minimise the risk of a volunteer claiming employment rights by; investing properly in volunteer management, perhaps employing someone who takes a sensible approach to these issues and has experience in the field; not allowing volunteers to be poorly treated, disciplining staff who do, and educating everyone about how to work well with volunteers; establish clear and well thought through policies around volunteer engagement that are regularly reviewed and consistently implemented; never discriminate against a volunteer.

With the exception of the last point there will be a cost associated with all of these actions. That cost is an investment to manage risk, enabling volunteers to make a transformative difference to your work whilst reducing the potential of the serious liability identified at step two.

What is the retained risk we are left with?
The formula for working this out is pretty simple: we know the worst case scenario is bad; we also know the likelihood of the risk happening is very low; and we’ve identified sensible and implementable steps to reduce that likelihood further. I’d see the retained risk as low to medium as a result, although you may view it a bit differently depending on your circumstances and your personal and organisational attitude to risk.So we have a low to medium retained risk. With that in mind, how sensible does it seem to avoid involving volunteers in some roles (or altogether)? Or limiting access to things that might help with volunteer recruitment (such as access to training and skills development not directly related to their role) just because there is a vague chance it might cause a problem down the road? Pretty silly really isn’t it?

In summary

If I had to sum all of this up in one sentence it’d be this: Instead of focusing first on contracts and what creates them, let’s concentrate on treating volunteers well in the first place. Do that and the contract issues become less of a priority, not something to be ignored but certainly not something to be obsessed about. The result? Our work will be more enjoyable, and we will create a more impactful and fulfilling experience for our volunteers.

Useful resources

Please note that I and Rob Jackson Consulting Ltd are not legal experts. We are sharing our experience of over twenty-four years in volunteer management and, as usual, challenging accepted wisdom. Please do take legal advice if you are in anyway unsure about the legal position in your organisation.

One thought on “Why we’ve got it all wrong when it comes to volunteers and employment contracts”

Hear hear! I still remember health and safety trainers I’ve meet who’ve spoken sense on this subject – a risk assessment is never there to stop you doing something, it is to understand how it is possible to do it safely.

I wonder also how much progress would be made if we gave only a sliver of our risk management/avoidance time to ‘opportunity assessment/taking’?